KCB Tanzania Limited & Another vs Magreth Joseph Olambo & Another (Civil Application No. 1150 of 2025) [2025] TZCA 1276 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KITUSI, J.A.. KAIRO. J.A.. And MURUKE. J.A.^ CIVIL APPLICATION NO. 1150 OF 2025 KCB TANZANIA LIMITED......................................................1 st APPLICANT BIDCITY AUCTION & ESTATE SALES LIMITED ..................... 2 nd APPLICANT VERSUS MAGRETH JOSEPH OLAMBO ............................................ l S T RESPONDENT UTEGI TECHNICAL ENTERPRISES (INTL) LIMITED .......... 2 nd RESPONDENT (Application to strike out a notice of appeal in respect of the ruling and drawn order of the High Court of Tanzania, Land Division at Dar es salaam) (Msafiri. J.^ dated the 24th day of September, 2024 in Land Case No. 16874/2024 & Misc. Application No. 18009/2024 RULING OF THE COURT 5th & 12th December, 2025 KAIRO. J.A.: This ruling is in respect of an application to strike out the notice of appeal preferred under rules 89 (2) and 90 (5) of the Tanzania Court of Appeal Rules, 2009, (the Rules). By notice of motion lodged on 13/6/2025, the 1s t applicant is requesting the Court to strike out the notice of appeal lodged on l 10/10/2024 by the 1s t respondent. The application is supported by an affidavit sworn by the 1s t applicant's principal officer, one Damas Gabriel Mwagange. None of the respondents filed an affidavit in reply. A brief background of the dispute goes as follows: - the 1st applicant, 1s t and 2n d respondents together with others who are not parties to this application, were involved in a legal wrangle vide Commercial Case No. 1/2011, following non repayment of the loan the 1s t applicant advanced to the respondents and others. The matter ended up in an amicable settlement and the respondents, among others were decreed to pay the decretal sum according to modality and within the time agreed in the settlement deed. It was further agreed that, in case of default, the 1s t applicant shall have recourse to the properties charged as securities against the loan. As it were, the respondents defaulted and the 1s t applicant appointed the 2n d applicant to sell the charged properties to repay the remaining sum. The move taken by the 1s t applicant prompted the 1s t respondent to file in the High Court, Land Division, Land case No. 16874 of 2024 and Misc. Land Application No. 18009 of 2024, seeking to challenge the 2 impending sale as advertised by the 2n d applicant and issuance of injunctive order pending the finalization of the main suit respectively. The 1s t applicant raised preliminary points of objections which were sustained by the High Court and consequently, the main suit and the application were dismissed on 24/9/2024. Aggrieved, the 1s t respondent lodged a notice of appeal on 10/10/2024 and further wrote a letter to the High Court Deputy Registrar requesting for certified copies of the proceedings, ruling and drawn order for the purpose of lodging an appeal to challenge the said ruling. Both letters were accordingly served on the respondent who in turn, filed a notice of address for service as required. According to the 1s t applicant, the 1s t respondent has never taken any further step since then in terms of rule 90 (5) of the Rules. Hence, this application seeking to strike out the notice of appeal lodged. When the application was called on for hearing, Ms. Regina Kiumba and Mr. John Carol Chogoro, both learned counsel represented the applicants and the 2n d respondent respectively. The 1s t respondent did not enter appearance despite being dully served through her advocate, one 3 Mr. Mushukuma. Ms. Kiumba therefore, prayed to proceed in the absence of the 1s t respondent in terms of rule 63 (2) of the Rules, the prayer which was granted by the Court considering that, the 1s t respondent has a knowledge of today's hearing through her advocate. When invited to amplify the application, Ms. Kiumba prayed to adopt the notice of motion and the supporting affidavit. In her brief but focused submission she argued that, since 10/10/2024 when the respondent wrote a letter to the Registrar requesting for requisite documents for appeal purpose, 90 days for the Registrar to prepare, notify and serve her with the same has lapsed on 8/1/2025. She went on to submit that, thereafter, the 1s t respondent ought to have made a follow-up within fourteen (14) days after the lapse if nothing was heard from the Registrar. However, she contended, the 1s t respondent did not do so. According to Ms. Kiumba, the inaction amounts to failure to take up essential steps in the prosecution of the intended appeal as required under rule 90 (5) of the Rules which warrants the striking out of the notice of appeal. To fortify her submissions, she referred us to our earlier decisions in Kassim Abdallah vs Apolinary S. Tarimo & 2 Others, Civil Application No. 227/17 of 2023 [2025] TZCA 14 (6 February 2025) and Cable & Satelite 4 Consultancy Limited vs Mwanachi Group Limited, Civil Application No. 631/01 of 2022 [2024] TZCA 881 (12 Sep 2024), both from TANZLII. Winding up, she implored the Court to grant the application with costs. As alluded to above, Mr. Chogoro, had no objection to the substantive prayer to strike out the notice of appeal. However, he beseeched the Court not to condemn the 2n d respondent to pay costs who was also forced to come to Court by the 1s t respondent, thus, a fellow respondent to the applicant as per the notice of appeal. Rejoining only on the aspect of costs against the 2n d respondent, Ms. Kiumba left the matter in the discretion of the Court. It is a settled legal stance that, the intending appellant is required to take necessary steps after lodging a notice of appeal. Rule 89 (2) is a safety valve to deter the intending appellants to use the Court as a parking lot through lodging the notices of appeal without taking further steps to pursue the intended appeals. [See: Tanzania Bureau of Standards and Another vs Charles Nyato, Civil Application No. 315/01 of 2021 (unreported). 5 In ensuring that the appeals are lodged timely and abolish the principle of home and dry in civil suits, rule 90 (5) of the Rules has set out the obligation of the intending appellant and the time within which to discharge the stated obligation. This is the provision of the law which the applicant contended to have been contravened by the 1st respondent. The same provides as follows-: "(5) subject to the provisions o f sub rule (1), the Registrar shall ensure that a copy o f the proceedings is ready for delivery within ninety (90) days from the date the appellant requested for such copy and the appellant shall take steps to collect the copy upon being informed by the Registrar to do so, or within fourteen (14) days after the expiry of ninety (90) days" [emphasis added]. It is on record that, the 1s t respondent on 10/10/2024 lodged the notice of appeal and wrote the Registrar requesting for requisite documents for appeal purpose within the prescribed time of 30 days effective 24/9/2024 when the decision subject to challenge was delivered. Flowing from the cited provision, the 1s t respondent was required to make 6 a follow up upon expiry of 90 days after the request was made without getting an information from the Registrar on the readiness of the requested document for collection. Noteworthy, the 1s t respondent ought to have done so within 14 days after the expiry of 90 days. [See: Kassim Abdallah vs Apolinary S. Tarimo & 2 Others (supra), and Cable & Satelite Consultancy Limited vs Mwanachi Group Limited (supra)]. However, there is no evidence on record which suggests that, the 1s t respondent has complied with rule 90 (5) of the Rules, the inaction which amounts to failure to take essential steps towards the institution of the intended appeal as correctly submitted by Ms. Kiumba. We are aware that, the 1s t respondent has not filed an affidavit in reply, which omission in our view confirms that, the 1s t respondent has nothing to counter the applicant's submission in the affidavit. This is in tandem with the legal idiom which goes as "silence means consent" considering that the 1s t respondent is aware of the scheduled hearing of this application today. In fine, we are constrained to agree with Ms. Kiumba and hold that the application has merit and should be granted. We accordingly proceed 7 to strike out the notice of appeal lodged by the 1s t respondent on 10/10/2024 in terms of rule 89 (2) of the Rules, with cost to the 1s t respondent. DATED at DAR ES SALAAM this day 11th of December, 2025. I. P. KITUSI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 12th day of December, 2025 in the presence of Ms. Ndehorio Ndesamburo, learned counsel for the Applicants also holding brief for Mr. Octavianus Mushukuma, learned counsel for the 1s t Respondent, Mr. John Chogoro, learned counsel for the 2n d Respondent and Ms. Anna Utou, Court Clerk, is hereby certified as a true copy of the .— J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 8